The Iron Rhine Case – A Treaty’s Journey from Peace to Sustainable Development Christian Djeffal* I. Departure – The Facts 569 II. Journey 571 1. Between Inadmissibility and Proliferation 572 2. Between Inapplicability and Equity 577 3. Between the Concrete Case and General International Law 579 III. Arrival – Dialectics or Dilemma 585 Abstract This article reviews the Iron Rhine case before an arbitral tribunal estab- lished under the rules of the Permanent Court of Arbitration. It inquires how an old peace treaty is interpreted to resolve a current dispute with the help of the principle of sustainable development. Three points of law are critically assessed. Firstly, the way in which the tribunal establishes its juris- diction vis-à-vis the ECJ. Secondly, how it determined the applicability of the treaty of separation. And finally, in which way it employed the principle of sustainable development. The article concludes by reflecting on the way in which judgments and awards should be understood and discussed by le- gal scientists. I. Departure – The Facts Thinking about peace and sustainable development, one tends to think about mutual relations and preferences like it is often referred to in the rela- tion of peace and justice: are those principles complementary or exclusive, necessary prerequisites or alternatives in international cooperation: And, or, neither … nor, either … or, and so forth? The notion of peace seems to be as * Research Assistant and Doctoral Student at the Humboldt University Berlin. The author is indebted to the staff at the Chair of Professor Dr. Georg Nolte, Humboldt-Universität zu Berlin, the members of the Amsterdam Center of International Law, as well as the partici- pants of the AjV-Workshop in Heidelberg for their valuable comments. The responsibility for errors remains, of course, with the author. ZaöRV 71 (2011), 569-586 http://www.zaoerv.de/ © 2011, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 570 Djeffal old as humanity.1 Since the beginning of human thought the problem of peace has been the maybe most fundamental problem of humanity.2 The term sustainable development is rather recent. Not by accident both notions play a very prominent role in the field of international cooperation. Where peace is threatened or even breached, international cooperation is often needed to restore or keep the peace. On the other hand, international coop- eration has often the aim to develop and further societies. In doing so, many environmental and societal issues have to be taken care of to make the de- velopment lasting and sustainable. Like in the case of peace and justice, peace and sustainable development could be construed as mutually exclu- sive as well as reinforcing each other. The Iron Rhine case,3 adjudicated by a tribunal under the rules of the Permanent Court of Arbitration, is a very interesting case to illuminate how those concepts interrelate. The Treaty of Separation of 18394 resulted from a dispute between the then “newly independent” Kingdom of Belgium and the United Kingdom of the Netherlands, which was a fragile state at that time. At the Conference of Vienna of 1815 it was tried to establish the United Kingdom of the Neth- erlands by merging the Austrian Netherlands with the former Republic of the United Provinces but the state building process failed and independence was declared on 4.10.1830. In the same year, the five permanent powers of the time recognised the Kingdom of Belgium at their conference in London while the King of the Netherlands did not accept the secession until 1839, when the said Treaty of Separation was concluded. Amongst other provi- sions the United Kingdom of Belgium was granted a right to passage through the territory of the United Kingdom of the Netherlands to link the port of Antwerp to German territory in Art. XII.5 It took the parties until 1 And as the notion of war, one tends to say. 2 See E. Beiser, Friede, in: J. Ritter: Historisches Wörterbuch der Philosophie, Vol. II, 1976, 1114. 3 Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway (the King- dom of Belgium and the Kingdom of the Netherlands), decision of 24.5.2005, RIAA XXVII, 35 et seq. 4 Consolidated Treaty Series (“C.T.S.”), 1838-1839, Vol. 88, 427. 5 Art. XII reads in the translation rendered in Iron Rhine (note 3), 18, para. 32: “In the case that in Belgium a new road would have been built or a new canal dug, which would lead to the Maas facing the Dutch canton of Sittard, then Belgium would be at liberty to ask Hol- land, which in that hypothesis would not refuse it, that the said road, or the said canal be ex- tended in accordance with the same plan, entirely at the cost and expense of Belgium, through the canton of Sittard, up to the borders of Germany. This road or canal, which could be used only for commercial communication, would be constructed, at the choice of Holland, either by engineers and workers whom Belgium would obtain authorization to employ for this pur- pose in the canton of Sittard, or by engineers and workers whom Holland would supply, and who would execute the agreed works at the expense of Belgium, all without any burden to ZaöRV 71 (2011) http://www.zaoerv.de/ © 2011, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht The Iron Rhine Case – A Treaty’s Journey from Peace to Sustainable Development 571 1873 to agree on the Iron Rhine Treaty6 which sets out how to proceed. By that time, the approach of 1839 to build a “road or canal” was really out- dated as trains were now state of the art. As human thinking captures the unknown in known terms, Ludolf Campenhausen, a German democrat and nationalist, found the metaphor Iron Rhine for the railway track that now preformed the function of rivers and canals.7 The track was well used until the Second World War. After, the track was only rarely used and traffic across borders stopped completely after 1991. While reserving is contractual right in the interim period, Belgium made concrete efforts to use the track again in 1998. By that time the Netherlands had implemented several envi- ronmental measures that caused the need to adapt the old route if the rail- way link was to be modernised as Belgium asked for. Those measures con- tained inter alia noise barriers¸ a partial deepening of the track and a tunnel of 6.5km and a rerouting of the historic track. As a dispute arose that could not be resolved by other means, the parties referred the dispute to an arbi- tral tribunal and asked whether the Netherlands were entitled to implement these environmental measures and who had to bear the costs. The tribunal confirmed Belgium’s right to transit8 as well as the right of the Netherlands to implement environmental measures on its territory,9 and held that the route could not be altered without the consent of Belgium.10 In relation to the costs, the tribunal held that this question could be re- solved by the Treaty of Separation and that the costs were incumbent on Belgium, while the Netherlands had to contribute if quantifiable advantages were derived from the modernisation. The tribunal went on to apply this logic to certain parts of the railway tracks as far as possible and left it for the parties to negotiate the exact allocation of costs. II. Journey One element that makes the case at hand most interesting is the amount of time that elapsed between the conclusion of the treaty and the settlement Holland, and without prejudice to the exclusive rights of sovereignty over the territory which would be crossed by the road or canal in question. The two Parties would set, by common agreement, the amount and the method of collection of the duties and tolls which would be levied on the said road or canal.” 6 C.T.S., 1872-1873, Vol. 145, 447. 7 L. von Campenhausen, Zur Eisenbahn von Köln nach Antwerpen 1833, 7. 8 Iron Rhine (note 3), 115, para. 220. 9 Iron Rhine (note 3), 111, para. 205. 10 Iron Rhine (note 3), 119, para. 232. ZaöRV 71 (2011) http://www.zaoerv.de/ © 2011, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 572 Djeffal of the dispute. Therefore, this article seeks to track the journey the tribunal made from a time when the parties had just ended a war of secession to a time of good neighbourhood under the umbrella of the European Union. The aim of this article is not only to explain what the tribunal held but how it arrived at its conclusions. The present study will, therefore, focus on three major issues of the award in the context of the possible other outcomes, which are: - The jurisdiction of the tribunal in the face of European law; - The applicability of the treaty to the modernisation of the railway link; - The role the principle of sustainable development played for the resolution of the dispute. 1. Between Inadmissibility and Proliferation The jurisdiction of the tribunal resulted from an ad hoc agreement be- tween Belgium and the Netherlands. While one would imagine that this was a secure source of jurisdiction, the exchange of notes contained a clause stat- ing that the “… Arbitral Tribunal is requested to render its decision on the basis of interna- tional law, including European law if necessary, while taking into account the Parties’ obligation under article 292 of the EC Treaty11 [article 344 Treaty on the Functioning of the European Union (TFEU)].” The parties to the dispute had raised several questions of European law.